Restore Florida's goalposts

ByTodd GazianoDecember 1, 2000

WASHINGTON
— To paraphrase Dr. Seuss' seasonal classic, I have been puzzling and puzzling over how to stop the lawyers and activist state judges from hijacking the election this year.

The case being argued today in the United States Supreme Court still has me puzzling. It might significantly help resolve this never-ending election - but then again, it might not.

The one clear fact about the case is that the Gore lawyers and pundits who whine that George W. Bush is hypocritical to bring the federal suit are being disingenuous. Liberals often advance the position that states have no inviolable power except that which the national government permits.

Yet strong defenders of federalism have never taken the opposite position, that the national government has no constitutional power of its own. And the federal judiciary is undoubtedly vital in the vindication of federal rights. The US Supreme Court would not have agreed to hear the Florida case, no matter how important it seemed to others, if it had not concluded that the case presented weighty issues of federal law. That Gore supporters are now embracing the crudest formulation of the states' rights argument is the real irony of the case.

Unfortunately, the Supreme Court declined to take up the strongest ground for federal intervention. This is the violation of constitutionally mandated "equal protection" that results from inconsistent standards of vote tabulation being applied in different parts of Florida. This result squarely conflicts with US Supreme Court and Eleventh Circuit Court of Appeals precedents under which votes cast in every part of the state must be weighed equally.

The court did indicate that Mr. Bush was free to renew his equal-protection claim, as did the Eleventh Circuit. A victory on this issue would have the greatest impact in voiding the results from all selective hand recounts and end other Gore attempts to cherry-pick votes. Because a statewide hand recount with uniform standards is increasingly unlikely, an equal-protection ruling probably would end legal challenges.

The federal issues currently before the US Supreme Court are more complicated, and in the light of recent Florida developments, a ruling on them might not be final. The case is still important, however. If Bush wins in the Supreme Court, no hand-recount figures could be included in Florida's certified result except those that were delivered by Nov. 14, and a state judge would have to make an independent decision whether to conduct a re-re-recount on his own.

Bush's main argument today is that the Florida Supreme Court's ruling amounted to a post-election change in the rules which violated the Fourteenth Amendment's due-process clause and a federal statute that prohibits such post-election changes in the method of selecting electors. The Florida Supreme Court plainly changed several statutory deadlines and attempted to usurp the statutory role of the Florida Elections Canvassing Commission.

The due-process clause prohibits a state from materially changing the election process after the election. For example, the due process clause prohibits a state (by whatever actor) from retroactively changing the date on which absentee ballots had to be mailed. Bush's petition presents an analogous issue.

Al Gore's response is that the Florida Supreme Court was merely "interpreting," not changing, the Florida scheme, or alternatively, that the Florida courts are routinely so activist that their post-election meddling is part of the normal election process. Of course, that is Orwellian. The Florida Supreme Court was not ashamed (although it should have been) to admit that it was dispensing with a "hyper-technical reliance upon statutory provisions." It was not interpreting the statute in any serious legal sense; it was using its supposed equitable power to make up dates and new rules of its own.

Bush's second argument is that this change in the Florida statutory election process violated Article II, Section 1 of the US Constitution, which grants state legislatures the power to determine the manner of selecting presidential electors. Bush has a strong argument on this separation of powers point. Normally, state separation of powers questions are not the purview of federal courts, but the framers made this aspect of state law a part of the US Constitution.

Yet, to make matters even more interesting, attorneys filed an amicus brief on Nov. 27, on behalf of the Florida Legislature, asking the US Supreme Court to rule that the entire case, including the usurpation of its constitutional prerogatives, is a political question that is not within its jurisdiction. According to the Florida Legislature, this is first a matter for it to resolve and then a matter for Congress to resolve in exercising its constitutional duty to count electors. If the US Supreme Court accepts this argument, it would dismiss the suit without ruling on the merits of Bush's claims. If that happens, perhaps Mr. Gore will learn the true meaning of judicial restraint. But all of us Whos down in Whoville, the tall and the small, may not like it at all.

Todd Gaziano is a senior fellow in legal studies at The Heritage Foundation.